CYBERNET INTERNET-DIENSTLEISTUNGEN AG
AND
PSINET GERMANY GMBH
PSINET DATACENTER GERMANY GMBH
ASSET PURCHASE AND TRANSFER AGREEMENT
November 07, 2002
XXXXXX
Rechtsanwalte
Frankfurt am Main
ASSET PURCHASE AND TRANSFER AGREEMENT DATED NOVEMBER 07, 2002
THIS ASSET PURCHASE AND TRANSFER AGREEMENT made the 7th day of November 2002.
BETWEEN:
CYBERNET INTERNET-DIENSTLEISTUNGEN AG, a company duly incorporated
and existing under the laws of Germany and whose head office
is situated at Xxxxxx-Xxxxxx-Ring 19-23, 81929 Munchen,
represented by its sole director Xxxxxxx Xxxxx ("Seller"),
AND:
PSINET GERMANY GMBH, a company duly incorporated and existing under
the laws of Germany and whose principal place of business is situated
at Xxxxxxxxxxxxxxx 0, 00000 Xxxxxx, represented by its managing
director Xxxx Xxxx ("Purchaser 1" "),
AND:
PSINET DATACENTER GERMANY GMBH, a company duly incorporated and
existing under the laws of Germany and whose principal place
of business is situated at Xxxxxxxxxxxxxxx 0, 00000 Xxxxxx,
represented by its managing director Xxxx Xxxx ("Purchaser 2"),
(collectively the "Parties" and each a "Party").
WHEREAS:
A. The Seller (i) owns and operates computer data centers in leased premises
("Computer Data Centers"), (ii) provides connectivity services
through high-speed communications backbone network including secure
VPNs, corporate networks and Internet access ("Connectivity Services")
and (c) provides E-Business solutions, inter alia, webhousing, web
hosting and related support, to corporate customers ("E-Business
Solutions"); and
B. The Seller wishes to sell to the Purchaser 1, and the Purchaser 1 wishes
to purchase, inter alia, the Customer Contracts and the Supplier
Contracts. Furthermore, the Seller wishes to sell to the Purchaser 2,
and the Purchaser 2 wishes to purchase, inter alia, (i) assets with
respect to the Connectivity Services and (ii) the Leases, all
subject to certain approvals.
NOW, THEREFORE, the Parties agree as follows:
1. DEFINITIONS, INTERPRETATION, SCHEDULES
-- ----------------------------------------
1.01. Definitions
When used in this Agreement and in the Recitals hereof, the following terms
shall have the meaning as described hereunder:
"Additional Payment" means EUR 400,000;
"Agreement" means this Asset Purchase and Transfer Agreement;
"Backbone" means the backbone operated by the Seller to provide the Connectivity
Services to its Customers, excluding city connect and inter-city connections;
"Bad Debts" means receivables from Billed Customers (as defined hereunder in the
definition of Relevant Revenues) that are not paid to a Purchaser, or, as the
case may be, to the Seller until Sunday, February 16, 2003;
"Bank Account" means the bank account of the Seller as listed in Schedule 1
[Bank Accounts;
"Bank Account Contract" means the contractual relation with the BHF-Bank
relating to the Bank Account number 00000000, BLZ 70220200;
"Business" means the operating of the Computer Data Centers and the provision of
the Connectivity Services and the E-Business Solutions by the Seller;;
"Calculation Date" means Monday, February 17, 2003, the day on which the
Relevant Revenues and the Expected Annual Revenue shall be established first;
"City and Intercity Connect" means the city and intercity connectivity services;
"Closing Date" means the third business day after all of the Conditions
Precedent are met or waived in accordance with the terms and conditions hereof,
or any other day as mutually agreed between the Parties in writing;
"Collected Future Revenues" means the consideration collected by the Seller from
its Customers for services to be provided to them from the Transfer Date as
listed in Schedule 2 [Collected Future Revenues];
"Computer Data Centers" means the collocation centers operated in the Frankfurt
Hosting Facility and the Munich Hosting Facility;
"Conditions Precedent" means the conditions precedent set out in Section 4
hereof;
"Connectivity Services" means the connectivity business and services as
described in the recitals;
"Credit Notes" means the credit notes issued by a Purchaser to Billed Customers
(as defined hereunder in the definition of Relevant Revenues) for bad or
insufficient services or errors in billing for services provided in November
2002, other than to Objecting Customers;
"Customers" means the Seller's customers related to the Computer Data Centers,
Connectivity Services and E-Business Solutions as listed in Schedule 3 Customer
Base;
"Customer Contracts" means all Seller's contracts with the Customers including
all written and oral contracts and contract rights as well as implied contracts
and contracts based on continued business practice, but shall not include the
Equipment Lease Contracts, and "Customer Contract" means any one such contract
with a Customer. The Customer Contracts existing on the Execution Date with the
40 Customers with the highest total revenue in the period of time from the June
2002 through August 2002 are completely listed in Schedule 4 [Material Customer
Contracts];
"Customer Related Assets" means (i) the Purchased Contracts other than the
Equipment Lease Contracts and the Leases, (ii) the Revenue Income relating to
(i) above, and (iii) the Information related thereto; "Employees" means the
Seller's employees that are assigned to the Purchased Business as listed in
Schedule 5 [Employees];
"Equipment Lease Contracts" means the lease contracts relating to the equipment
set out in Schedule 6 [Leased Equipment];
"Equipment Related Assets" means (i) the Purchased Tangible Assets and
Inventories, (ii) the Equipment Lease Contracts and the Revenue Income related
thereto, (iii) the Purchased Intangible Assets, (iv) the Leases and (v) the
Information related thereto, and (vi), to the extent the Seller is the owner, or
is entitled to dispose of, any other assets that are necessary for the
operation of the Computer Data Centers and the Transferred POPs and for
supporting the Customers in the Munich Hosting Facility;
"EUR" and the sign "E" means the lawful currency of the members of the European
single currency union;
"Excluded Customers" means such Costumers as set out in Schedule 7 [Excluded
Customers] hereof;
"Excluded Customer Contracts" means both the Customer Contracts and the
Equipment Lease Contracts with Excluded Customers;
"Execution Date" means the date of signing of this Agreement;
"Expected Annual Revenue" means the annualized Relevant Revenues as calculated
on the Calculation Date, respectively the Final Adjustment Date; for greater
certainty the expression annualized Relevant Revenues means the Relevant
Revenues multiplied by twelve(12);
"Facilities" means collectively the Frankfurt Hosting Facility and the Munich
Hosting Facility and the Munich Office Facility;
"Final Adjustment Date" means April 15, 2003, the day on which the Relevant
Revenues and the Expected Annual Revenue shall be finally established;
"First Installment" means 75% of the Maximum Consideration plus VAT thereon;
"Frankfurt Hosting Facility" means the facilities, used by the Seller on the
basis of a data center service contract (Data Center Service Vertrag) with
Telehouse dated July 3, 2001, as amended by the 2. supplement agreement, located
in Frankfurt am Main, Xxxxxxx LandstraBe 296-328;
"Information" means all material Customers' records, including, in each case,
the full name and address and addresses for delivery or collection or for
provision of services, all as known by, and available to, the Seller, which may
retain copies for its own records;
"Leases" means collectively the contracts relating to the use of the Transferred
POPs all of which are listed in Schedule 8 [Leases] and "Lease" means any one of
such contract;
"Leasing Customers" means such Customers that have entered into lease and/or
rent purchase agreements with the Seller;
"Maximum Consideration" means EUR 3,500,000 plus the Additional Payment;
"Migration POPs" means the POPs listed in Schedule 9 [Migration POPs]
"Monthly Share" means the annualized net amount of Non Monthly Billed Services
divided by twelve(12);
"Munich Hosting Facility" means the facilities, used by the Seller on the basis
of a data center service contract (Data Center Service Vertrag) with Telehouse
dated July 3, 2001, as amended by the 2. supplement agreement, located in 00000
Xxxxxxxxx (Munich/Heimstetten), AmmerthalstraBe 4-6 and AmmerthalstraBe 10;
"Munich Office Facilities" means the facilities, leased by the Seller from
Bayerische Hausbau GmbH on the basis of a sublease contract dated February 29,
1996, as amended by 10 supplement agreements, located in Xxxxxx-Xxxxx Xxxx
00-00, 00000 Xxxxxx;
"Non Monthly Billed Services" means services provided by the Seller to its
Customers in November 2002 and that are not billed monthly but quarterly,
semi-annually, annually or otherwise;
"Objecting Customer" means a Customer which has objected in writing to the
transfer of its Customer Contract and/or Equipment Lease Contract and such
objection has been received by the Seller or a Purchaser by December 31, 2002,
but such Customer shall not be considered an Objecting Customer if such Customer
has entered, or has made a valid offer to enter, into a new contractual
relationship with a Purchaser until December 31, 2002, however, in the event
that the terms of the new contract are less favorable such new terms shall be
applied;
"Oracle License" means the license relating to the use of the Oracle database;
"Prior Transfer Date Revenues" means each and any revenues relating to the
Seller's services prior to the Transfer Date;
"Purchase Price" means the consideration set out in and as adjusted in
accordance Section 3 hereof;
"Purchaser" means either Purchaser 1 or Purchaser 2, or, as the context may
require, collectively both;
"Purchased Assets" means, with respect to a Purchaser the assets purchased by it
pursuant to this Agreement;
"Purchased Business" means the Business to the extent it is related to, or
operated by
and with, the Purchased Assets;
"Purchased Contracts" means (i) all Customer Contracts other than the Excluded
Customer Contracts, (ii) the Leases, (iii) the Supplier Contracts and (iv) the
Equipment Lease Contracts other than Equipment Lease Contract with Excluded
Customers;
"Purchasers' Attorneys" means Mayer, Brown, Xxxx & Maw Gaedertz, Bockenheimer
XxxxxxxxXx 00-000, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx;
"Purchased Intangible Assets" means the software licenses and the domains listed
in Schedule 10 [List of Sold Intangible Assets] hereof;
"Purchased Tangible Assets and Inventories" means the tangible assets and
inventories listed in Schedule 11 [List of Sold Tangible Assets and Inventories]
hereof;
"Relevant Revenues" means
(a) the revenues (Umsatzerlose) within the meaning of Section 277 para. 1
German Commercial Code (i.e. net) billed in accordance with the payment terms of
the applicable Customer Contracts by the Seller in December 2002 to its
Customers ("November Invoices"), or, in the event that Customer Contracts and
Equipment Lease Contracts have been transferred or assigned already to a
Purchaser, its previous Customers, for services provided in November 2002
("Billed Customers"),
(b) plus the Monthly Share of Non Monthly Billed Services,
(c) less (i) the amount invoiced to Objecting Customers, (ii) the amount
invoiced to Leasing Customers that have not positively approved the transfer of
their contracts in writing to either the Seller or a Purchaser, (iii) the amount
of justified Credit Notes up to a maximum aggregate amount of EUR 50,000 and
(iv) the Bad Debts; and
(d) less an amount of up to EUR 25,000 of the recurrent revenues billed for
services provided in November 2002 to Excluded Customers;
(e) less 50% of the Seller's hardware costs contained in the November
Invoices.
"Respective Purchaser" means the Purchaser that has purchased specific Purchased
Assets as set out in this Agreement;
"Revenue Income" means all receivables for deliveries and services provided from
and after the Transfer Date arising from Customer Contracts and Equipment Lease
Contracts, except from the Excluded Customer Contracts;
"Schedules" means any schedules referred to in this Agreement, in particular the
schedules listed in Section 1.03 hereof;
"Seller's Attorneys" means Xxxxxx-Rechtsanwalte, Xxxx-Xxxxxxx-XxxxXx 00-00,
00000 Xxxxxxxxx xx Xxxx, Xxxxxxx;
"Supplier Contracts" means the contracts with DTAG, Highway One, ColtQSC and
other supplier contracts all of which as set out in Schedule 12 [Supplier
Contracts];
"Telehouse" means Telehouse Deutschland GmbH, Xxxxxxx LandstraBe 316-324; 60314
Frankfurt am Main;
"Transfer Date" means November 1, 2002;
"Transferred POPs" means the POPs listed in Schedule 13 [Transferred POPs];
"VAT" means the statutory value-added tax applicable in Germany.
1.02. Interpretation
(a) Save as otherwise provided herein, references to clauses, paragraphs and
Schedules are to those contained in this Agreement.
(b) Headings are inserted for convenience only and do not effect the
construction of this Agreement.
(c) Unless the context otherwise requires, words importing the singular
include the plural and vice versa, words importing the masculine
include feminine, and words importing person include corporations.
(d) Reference in this Agreement to writing or similar expressions include
where the context so admits transmission by telecopier or comparable
means of communication.
(e) Unless the contrary is clearly stated, references to Act, statutory
instruments and other legislation are to legislation operative in
Germany ;
(f) Reference to any document includes that document as amended or
supplemented from time to time.
(g) A document is in "the agreed form" if its is in the form of a draft
agreed between and initialed by or on behalf of the Parties hereto on or
before the date hereof.
1.03. Schedules
The Schedules form an integral part of this Agreement and reference to this
Agreement includes references thereto.
Schedule 1 Bank Accounts
Schedule 2 Collected Future Revenues
Schedule 3 Customer Base
Schedule 4 Material Customer Contracts
Schedule 5 All Employees related to the Business
Schedule 6 Leased Equipment
Schedule 7 Excluded Customers
Schedule 8 Leases
Schedule 9 Migration POPs
Schedule 10 List of Sold Intangible Assets
Schedule 11 List of Sold Tangible Assets and Inventories
Schedule 12 Supplier Contracts
Schedule 13 Transferred POPs
Schedule 14 14 Employees
Schedule 15 Employees that have signed a settlement agreement
Schedule 16 6 Migration Employees
Schedule 17 Collocation Space
Schedule 18 Munich Office Space
Schedule 19 Legal Proceedings
2. SALE, PURCHASE AND TRANSFER
-- ------------------------------
2.01. Sale. Subject to the terms and conditions set out in this Agreement
the Seller hereby agrees to sell and assign the Customer Related Assets to
Purchaser 1 and the Equipment Related Assets to Purchaser 2, both with effect as
of the Transfer Date, free from all liens, charges and encumbrances and together
with all rights now or hereafter attaching thereto, other than the statutory
landlord's lien attached to those of the Equipment Related Assets that are
located in the POPs. The Purchaser1 hereby agrees to purchase and accept the
assignment of the Customer Related Assets and the Purchaser 2 hereby agrees to
purchase and accept the assignment of the Equipment Related Assets.
2.02. Release and Indemnification. Liabilities which have been legally or
economically caused before the Transfer Date or arise in respect of the period
before the Transfer Date are not assumed by the Purchasers. The Seller shall
indemnify and hold harmless each Respective Purchaser from each and any claims
in connection with the Purchased Assets which result from any act, omission or
event occurring on or before Transfer
Date.
2.03. Costs. The Purchasers severally shall bear each and any costs directly
relating to the Purchased Assets (e.g. local loop) as from the Transfer Date,
unless they arise from liabilities not assumed by a Purchaser or unless the
Seller is liable otherwise for these costs under the terms and conditions of the
Agreement.
2.04. Transfer. Subject to the terms and conditions set out in this Section
2.04 and Section 2.08 the Seller herewith transfers title to (i) the Customer
Related Assets to the Purchaser 1 and (ii) the Equipment Related Assets to
Purchaser 2 and the Purchasers accept such transfer. Transfer of title to a
Purchaser of tangible assets, chattels or property in movables shall be effected
by actual delivery, constructive delivery or constructive delivery by assigning
the right to return and possession; claims, entitlements and any intangible
assets shall be transferred to a Purchaser by assignment, all as set out
hereunder:
(a) Movables and Fictitious Parts. The Seller herewith transfers title
(Eigentum) to the Purchased Assets as far as they are legally qualified as
movables or as fictitious integral parts (Scheinbestandteile) of the Facilities
or the Leases and any other rights (including expectant rights
(Anwartschaftsrechte)) with regard to the Purchased Assets to Purchaser 2 and
assigns to the Purchaser 2 his claims for delivery and return from the possessor
of such Purchased Assets pursuant to Sec. 931 German Civil Code.
(b) Integral Parts. As far as Purchased Assets are legally qualified as
integral parts (wesentliche Bestandteile) of the Facilities or the Leases, the
Seller herewith transfers his other proprietary rights to such Purchased Assets,
i.e. the beneficial ownership (wirtschaftliches Eigentum) with regard to such
Purchased Assets to the Purchaser 2 and assigns any and all of his rights,
claims and interests with respect to these proprietary rights to such Purchaser
2.
(c) Intangible Assets. The Seller herewith agrees with the Purchaser 2 that
title to the Purchased Intangible Assets shall pass to the Purchaser 2. To the
extent intellectual property rights in connection with Purchased Intangible
Assets are not transferable, particularly with respect to software and know-how,
the Seller grants to the Purchaser 2 an unlimited and exclusive license, subject
to any required third party's approval as set out in this Agreement. For greater
certainty, the warranties provided for in section 9.02 of this Agreement shall
not be affected hereby.
(d) Revenues. The Seller herewith transfers to Purchaser 2 the Revenue
Income, to the extent related to the Equipment Leasing Contracts, and to
Purchaser 1 any other Revenue Income and each Purchaser accepts such transfer.
(e) Contracts. The Purchaser 1 herewith takes-over as a whole (Vertrags
bernahme) ("Contract Take-Over") the Purchased Contracts other than (i) the
Equipment Lease Contracts and (ii) the Leases, and the Purchaser 2 herewith
takes-over as a whole all the Equipment Lease Contracts and the Leases. In
particular, the Seller assigns and transfers all of its rights and entitlements,
and the Respective Purchaser assumes all obligations and liabilities, under the
respective Purchased Contracts, both as arising from and upon the Transfer Date.
For greater certainty, debts which have been legally or economically caused on
or before the Transfer Date or which are related to the period prior to the
Transfer Date are not assumed by a Purchaser.
Should any of the Customers, other than the Excluded Customers, not approve a
Contract Take-Over, then the Parties agree to construe this clause as a
cumulative assumption of obligations (Schuldmitubernahme") as arising from and
upon the Transfer Date . For greater certainty, debts which have been legally
or economically caused on or before the Transfer Date or which are related
to the period prior to the Transfer Date are not assumed by the Respective
Purchaser. The Respective Purchaser, in that event, shall undertake to
provide all services to such Customers on own account but on behalf of, and,
subject to section 2.03, without costs for, the Seller and the Purchaser 1
shall be entitled to the Revenue Income. For greater cer-
tainty, the assignment and transfer of the Revenue Income and the rights and
entitlements shall not be affected in the event, that Customers do not
approve a Contract Take-Over.
(f) Other Benefits. The Seller hereby assigns to the Respective Purchaser
any sums or benefits in respect of any of the Purchased Assets it shall
forthwith receive therefore.
2.05. Third Party Consent. Where consent of a third party ("Third Party
Consent") is required to permit the transfer or assignment to a Purchaser of the
interest of the Seller in any of the Purchased Assets in the manner contemplated
by this Agreement, in particular regarding the Supplier Contracts, the Customer
Contracts and the Equipment Lease Contracts, any such transfer or assignment
where the required consent has not been received on or before the Closing Date,
or on or before any other date specified in this Agreement, or where the Parties
concerned have agreed not to apply for a consent, e.g. in the event a consent of
a third party has been made a condition precedent hereunder and such condition
precedent has been waived, (collectively a "Retained Asset") such transfer or
assignment shall have legal effect to the extent Third Party Consent is not
required, and shall not have legal effect regarding the other parts until the
applicable consent has been received thereafter and such Retained Asset shall be
held by the Seller following the Transfer Date in trust for the benefit and
exclusive use and for costs, subject to section 2.03, of the Respective
Purchaser and such Respective Purchaser, subject to section 2.02, shall keep the
Seller indemnified from each and any claims under the Retained Assets to the
extent such claims relate to the period from the Transfer Date. The Seller
thereupon shall only make use of such Retained Asset in accordance with the
directions of the Respective Purchaser. However, the premises do not apply in
the event that such trust relation and/or right to use would trigger any event
of default or potential event of default relating to the Retained Asset.
2.06. Bank Account. The Seller agrees to assign and transfer the Bank
Account to the Purchaser 1. Any positive balance, other than Revenue Income, on
the Bank Account on the date of transfer of the Bank Account are for the account
of the Seller, and shall be transferred to the Seller and any negative balance
as of the date of transfer of the Bank Account or caused prior thereto, if any,
shall be settled by the Seller.
2.07. False Payments. Should either Party ("Receiving Party") receive
payments, that, pursuant to the terms hereof, were due and payable to another
Party ("Party Entitled"), the Receiving Party shall immediately transfer such
monies to the Party Entitled. In particular, the Revenue Income shall be solely
for the account and benefit of the Purchaser 1 and the other revenues for the
Seller.
2.08. Condition Precedent for Transfers. The transfers, rights and
obligations mentioned in this Section 2 shall become effective on the later of
(i) the Transfer Date, or (ii) Closing Date and the payments by the Purchasers,
and the receipt by the Seller, of the First Installment in a manner as set out
in Section 3.04 (a) (aufschiebende Bedingung). For greater certainty, no
transfer to either of the Purchasers shall become effective, as long as the
Seller has not received the shares of the First Installment payable by both
Purchasers pursuant to this Agreement.
2.09. Supplementary Declarations. To the extent required for the
consummation of the transactions contemplated herein, in particular to the
extent necessary or appropriate for the transfer of the Purchased Assets, the
Parties obligate themselves promptly to make supplementary declarations and
execute instruments in the form as appropriate in each given case.
3. CONSIDERATION
--
3.01. Purchase Price. The consideration payable to the Seller for the
Purchased Assets ("Net Purchase Price") shall be the consideration set out in
the table hereunder and as adjusted in accordance with this Section 3 ("Variable
Consideration") plus the Addi-
tional Payment. The Purchase Price payable
(a) by Purchaser 1, for the Customer Related Assets, shall be a portion of
EUR 285,000 of the Additional Payment and 5/7 of the Variable Consideration, and
(b) by Purchaser 2, for the Equipment Related Assets, shall be the remainder
portion of EUR 115,000 of the Additional Payment and 2/7 of the Variable
Consideration,
and the Purchasers are each several debtors.
EXPECTED ANNUAL REVENUE CONSIDERATION
---------------------- -------------
up to E 8,000,000 Expected Annual Revenue x 0,3 (i.e.: 30%) with-
out any adjustment
more than E 8,000,000 E 2,500,000, adjusted in accordance with
- up to E 8,500,000 Section 3.02
more than E 8,500,000 - E 2,900,000, adjusted in accordance with Section 3.02
up to E 9,000,000
more than E 9,000,000 - E 3,200,000, adjusted in accordance with Section 3.02
less than E 9,500,000
E9,500,000 or greater E 3,500,000
3.02. Expected Annual Revenue Band. The amount by which the Variable
Consideration shall be adjusted shall be calculated as follows: If the Expected
Annual Revenue falls within the bands set out in the table above, then the exact
amount of the consideration shall be calculated by interpolation on a straight
line basis, provided that in no event the Variable Consideration shall exceed
EUR 3,500,000 . For example, if the Expected Annual revenue is E 8,100,000 (i.e.
20% of the spread between E 8,000,000 and E 8,500,000), than the Variable
Consideration would be increased by 20% of the spread between E 2,500,000 and
E 2,900,000, i.e. by E 80,000.
3.03. VAT. The Parties assume that the sale pursuant to the provisions of
this Agreement does not constitute a sale of a business as a whole within the
meaning of Section 1 paragraph 1a of the German Turnover Tax Act 1999
(Umsatzsteuergesetz 1999).
(a) Thus, VAT shall be added on the Net Purchase Price and be payable by the
Purchasers. VAT shall become due upon receipt of an invoice made out in
accordance with the applicable law.
(b) The VAT shall be discharged by the Purchasers by assigning to the
Seller, on account of performance (erfullungshalber), their claims against the
competent German tax office for refunds of value-added tax to which it is
entitled as a result of the implementation of this transaction, and Seller
hereby accepts such assignment. Each Purchaser undertakes upon Seller's request
to repeat such assignment without undue delay on an official form of the tax
office. Seller on its part shall make a further assignment of such claims to the
competent tax office for purposes of effecting a set-off. The Parties shall
endeavour, to the extent possible, to settle any claims for the payment and
refund of value-added tax by way of set-off so that no payment obligation
arises. Value-added tax obligations which cannot be discharged by way of set-off
when value-added tax payable by the Seller falls due shall be paid in cash by
the Purchasers, which are several debtors, on such due date; in such event and
to that extent, Seller's claim to refund shall be re-assigned to the Respective
Purchaser in exchange for cash payment. Seller undertakes upon Purchaser's
request to repeat such assignment
without undue delay on an official form of the tax office. If Seller has to pay
interest for deferred payment or surcharges for overdue payment of the value-
added tax because, without Seller being responsible therefore, the set-off of
refund claims against value-added tax obligations is delayed, the respective
Purchaser shall reimburse Seller for such interest and surcharges.
(c) If a Purchaser's right to a refund of value-added tax subsequently turns
out not to exist, either in whole or in part, such Purchaser shall be obligated
to pay an appropriate amount of value-added tax to the Seller in cash.
(d) In the event that VAT is not applicable to the transaction(s)
contemplated herein, the Parties shall co-operate with each other and make such
payments to the tax office when due, and deliver to the other Parties such
documents evidencing such payments and take each and any action in order to
recover any such payments from the tax office.
3.04. Payment of Purchase Price. The Purchase Price (i.e. Net Purchase Price
plus VAT) shall be payable by the each Purchaser in the shares as set out in
Section 3.01 to the Seller as follows:
(a) The First Installment to be paid in cash at the later of (i) Closing or
(ii) the Transfer Date;
(b) On the Calculation Date the Parties shall establish the Expected Annual
Revenues and the Purchasers shall pay to the Seller (i) the remaining 25% of the
Additional Payment and (ii) any amount of the Variable Consideration exceeding
75 % of EUR 3,500,000 (EUR 2,625,000), if any, and, in the event that the
Variable Consideration falls short of the EUR 2,625,000 ("Repayment Balance")
the Seller shall pay to the Purchasers their respective shares of the Repayment
Balance, both within 5 business days upon the Calculation Date; and
(c) On the Final Adjustment Date the Purchase Price shall be adjusted
upwards and finally ("Adjustment Amount") by taking into account (i) the Bad
Debts collected after the Calculation Date until the Final Adjustment Date, if
any, and (ii) the amounts invoiced to Leasing Customers that have approved the
transfer of their contracts between the Calculation Date and the Final
Adjustment Date, and the Purchasers shall pay the Adjustment Amount within 5
business days to the Seller.
3.05. The Parties shall cooperate in good faith so that the Expected Annual
Revenue, the Exceeding Amount and the Adjustment Amount may be established on
the Calculation Date respectively the Final Adjustment Date. To the extent
required, each party shall provide the other party reasonable access to
documents and other information. In the event of a dispute between the Parties
that cannot be resolved amicably within 5 business days, either Seller or
Purchaser may notify the other party at any time in writing that the dispute
shall be submitted for final settlement to an expert arbitrator
(Schiedsgutachter) mutually agreed to between the Parties ("Expert Arbitrator")
whose decision shall be binding on the parties involved. If no mutual agreement
can be reached regarding the person of the Expert Arbitrator within 5 business
days of the written notification, either party may request the appointment of an
Expert Arbitrator by the President of the Institute of Chartered Accountants in
Germany (Institut der Wirtschaftsprufer e.V., Dusseldorf). The Expert Arbitrator
shall be an independent accountant as a Wirtschaftsprufer in Germany and shall
be a member of a recognized accounting firm with international standing. The
Expert Arbitrator shall be instructed to, authorized to and shall, to the extent
necessary, establish the Relevant Revenue, the Expected Annual Revenue, the
Exceeding Amount and the Adjustment Amount. Upon the Expert Arbitrator's first
request, Seller and Purchasers shall each advance one half of the estimated
expenses and fees of the Expert Arbitrator. Each party to the proceedings shall
bear its own costs and those of its consultants. The Expert Arbitrator shall, in
his equitably exercised discretion, decide on the final apportionment of his
expenses and fees taking into account to which extent the respective party
prevailed or failed in the expert arbi-
tration proceedings.
3.06. Collected Future Revenues. The Seller shall pay to the Purchaser 1 on
the Calculation Date the Collected Future Revenues, if any. However, Collected
Future Revenues shall not be paid to the Purchaser 1 for Objecting or Excluded
Customers.
3.07. Prior Transfer Date Revenues. The Parties shall liaise with each other
in the collection of the Prior Transfer Date Revenues, that are solely for the
account of the Seller.
3.08. Reconciliation of Costs and Prior Transfer Date Revenues. The costs
and Prior Transfer Date Revenues shall be reconciled first on January 15, 2003
and thereafter on each of the Calculation Date and the Final Adjustment Date.
3.09. Bank Account. Payments to the Seller shall be made into the following
account:
Deutsche Bank AG Frankfurt
SWIFT: XXXXXXXX
Favor Account: 100941808800
in the name of Bank Xxx Xxxxxxxxx, Zurich
for further credit (ffc) account number 88637
in the name of MFC Merchant Bank S.A.,
Re.: Cybernet Internet-Dienstleistungen AG, 100596
Payments to the Purchaser 1 shall be made into the following account:
Bank: Commerzbank Munich
Account Number: 150848000
Beneficiary: PSINet Germany GmbH
Bank Routing Number: 00000000
Payments to the Purchaser 2 shall be made into the following account:
Bank: Commerzbank Munich
Account Number: 150826600
Beneficiary: PSINet Datacenter Germany GmbH
Bank Routing Number: 00000000
3.10. Default Interest. Any part of the Purchase Price or the Exceeding
Amount in default shall bear interest at a rate of 3-Months-LIBOR plus 4,0 %
p.a.
4. CONDITIONS PRECEDENT, CLOSING
-- -------------------------------
4.01. Closing. Subject to Sections 4.02 and 4.03, Closing shall take place
on the Closing Date.
4.02. Conditions Precedent in Favor of Purchasers. Closing of this
Agreement is subject to the complete fulfillment of the conditions in the favor
of the Purchasers as set out hereunder in this Section 4.02 or the waiver in
writing thereof by the Purchasers on or before Closing:
(a) The Seller has confirmed in writing, that, other than as set out in this
Agreement, no charges or other security interests are affecting any of the
Purchased Assets;
(b) Financing Arrangement. Purchasers have concluded a financing agreement
in the amount of EUR 875,000 in a way satisfactory to the Purchasers; and
(c) Oracle License. Oracle has approved to the transfer of the Oracle
License.
4.03. Conditions Precedent in Favor of the Parties. Closing of this
Agreement is subject to the complete fulfillment of the conditions in the favor
of the Parties as set out hereunder in this Section 4.03 or the waiver thereof
by both Parties in writing on or before Closing:
(a) Hosting Facilities. The Purchaser 2 and the Seller have entered into
lease agree-
ments with regard to certain collocation space of the Frankfurt
Hosting Facility and the Munich Hosting facility at terms and conditions
satisfactory to both Parties.
(b) Office Facility. The Purchaser 2 and the Seller have entered into a
sub-lease agreement with regard to the Munich Office Facility at terms and
conditions satisfactory to both Parties and the Seller has obtained the approval
of Bayerische Hausbau GmbH and/or the lessor of Bayerische Hausbau GmbH to the
extent such an approval is required.
(c) POPs. The Leases have been transferred to the Purchaser 2.
(d) Contracts. The Supplier Contracts have been transferred to the Purchaser
1 and the Equipment Lease Contracts have been transferred to the Purchaser 2, or
the Suppliers have agreed to amend or terminate the Supplier Contracts in a way
satisfactory to the Seller and Purchaser 2.
(e) Bank Account. The Bank Account shall be assigned and transferred to the
Purchaser 1;
(f) Approvals. On or before the Closing Date, there shall have been obtained
from all appropriate governmental authorities all permits, consents, approvals,
certificates, registrations and authorizations, if any, as are required to be
obtained to permit the transfers contemplated herein.
(g) Completion of Schedules. The parties have completed the Schedules in a
way satisfactory to both parties.
The conditions precedent listed in this Section 4.03 are deemed to have occurred
even if the aforementioned sublease and transfer agreements contain reservations
or conditions precedents with respect to the coming into force of the Agreement.
4.04. Rescission. The Seller and the Purchasers shall use their best
endeavors to ensure that the conditions of this Section 4 are fulfilled on or
before November 30, 2002. If any of such conditions are not so fulfilled and not
waived by the Party in favor of whom the condition precedent has been agreed
upon in this Section, that Party may rescind the Agreement without liability of
either Party to the other Party for cost, damages or the like.
For greater certainty it is agreed that any rescission by one Purchaser
constitutes a rescission with respect to the contract between the Seller and the
other Purchaser as well and the rescission by the Seller to one Purchaser
constitutes a rescission with respect to the contract between the Seller and the
other Purchaser.
5. EMPLOYMENT MATTERS
-- -------------------
5.01. As of the Transfer Date the Purchaser 1 at its own costs takes over
those of the Employees listed in Schedule 14 [14 Employees]. The Seller shall
use its best efforts to facilitate the entering Purchaser 2 at terms
not less favorable to them than the present terms.
5.02. The Seller shall solely and exclusively indemnify and hold harmless
the Purchaser 2 1 from each and any claims of Employees other than (i) those
listed in Schedule 14 [14 employees] and (ii) those listed in Schedule 15
[Employees that have signed a termination agreement] and provided only that
these Employees have not entered into a separate employment contract with a
Purchaser until April 15, 2003.
5.03. The gross salary and any severance payments related to the Employees
listed in Schedule 16 [6 Migration Employees] shall be shared equally as from
the Transfer Date, but not longer than December 31, 2002 and in the aggregate
not more than EUR 110,000.
5.04. The Parties agree that the Purchaser 1 shall only pay the portion of
the bonus and com-
mission claims of the Employees for the year 2002 for the period from
1 November 2002 to 21 December 2002, and only for the Employees listed in
Schedule 14 [14 employees].
5.05. Seller undertakes to compensate Purchaser 1 for the vacation claims of
the Employees listed in Schedule 14 [14 employees] which arose in 2002 but which
have not yet been met.
6. LEASES
-- ------
6.01. (Sub)lease. The Seller hereby agrees to (sub-)lease to the Purchaser 2
collocation space of 25 square meters of the Frankfurt Hosting Facility and 175
square meters of the Munich Hosting Facility both as marked in Schedule 17
[Collocation Space] at a monthly price per square meter of EUR 90 payable at the
end of the month for a term ending automatically without renewal option on
December 31, 2003.
6.02. The Seller further agrees to lease to the Purchaser 2 space of about
one third of the aggregate office space including 6 parking lots as set out in
Schedule 18 [Munich Office Space] at a monthly price of EUR 10,000 plus
ancillary costs, if any, plus VAT payable at the end of the month for a term
ending automatically without renewal option on December 31, 2003;
6.03. Migration POPs. The Seller and the Purchaser 2 shall equally (i.e.
Seller 50% and Purchasers 50%) share the rental, security and electricity costs
related to the Migration POPs from the Transfer Date until December 31, 2002.
7. MIGRATION OF CUSTOMERS AND SUPPORT
-- --------------------------------------
7.01. Customer Migration. The Parties shall co-operate in good faith to
effect the technical migration and the migration of the Customers successfully
with minimum disruption to Customers and to migrate all Customers other than the
Excluded Customers. The Purchaser 1 shall be entitled to use the name "Cybernet"
in order to identify the services related to its Purchased Assets and to retain
the Customers, however, for greater certainty, a Purchaser shall not be entitled
to act on behalf of the Seller or to pretend to be authorized to act on behalf
of the Seller. The Purchasers shall undertake to use their best efforts to offer
to any of the Objecting Customers to enter into a new contractual relationship
with the Respective Purchaser at comparable conditions ("New Contracts") in such
a way that the New Contracts will be effective prior to December 31, 2002.
7.02. Legal Mechanics of Migration. The Parties agree to inform the
Customers jointly of the transfer of the Customer Contracts and the Equipment
Lease Contracts to the Respective Purchaser and request the payment of the
consideration to the Respective Purchaser. The Parties consider such Customer
Contracts and Equipment Lease Contracts legally migrated where the Customers pay
the consideration to the Respective Purchaser and do not expressly object until
the first payment, latest until December 31, 2002. However, for greater
certainty, the Parties agree and acknowledge that the objection of a Customer
and/or the non-payment shall have no other legal effect than for the calculation
of the Variable Consideration in accordance with the terms herein, in particular
no Purchaser shall be entitled to reduce the Purchase Price or have any other
remedies, other than set out in this Agreement.
7.03. Support. The Seller shall provide ongoing support to the migrating
Customers during the migration period, but not longer than December 31, 2002,
the scope of which includes exclusively backbone network until December 31,
2002, City Connect until January 31, 2003, Intercity Connect until January 31,
2003 and the necessary human resources.
7.04. Objecting Customers and Excluded Customers. The Purchasers shall at no
cost for the Seller provide to any Objecting Customer and, to the extent
technical feasible to the
Excluded Customers, services until the date of termination of the
respective Customer Contracts and/or Equipment Lease Contracts, provided
however, that all revenues are for the Respective Purchaser's account
and any shortfall of revenues regarding the Excluded Customer Contracts
shall be borne by the Seller.
7.05. Billing System. The Seller shall be technically responsible for the
billing of the services provided in November 2002. However, the Purchasers shall
bear the costs thereof, that shall not be significantly higher than in the past.
Additionally, the Seller shall support the Purchasers in the acquisition of a
license for the billing system until February 28, 2003.
7.06. Domains. The Seller undertakes to provide the Purchaser 2, or as
jointly instructed by the Purchasers, with any approval or consent that may be
required to transfer the Admin-C relating to the sold domains or any domains of
Customers, if properly requested.
7.07. Backbone. The Parties agree to equally share (i.e. 50% Seller, 50%
Purchasers) the costs relating to the Backbone for a period commencing on the
Transfer Date and ending December 31, 2002.
7.08. City and Intercity Connect. The Purchasers agree to share with the
Seller the costs relating to the City and Intercity Connect for a period
commencing on the Transfer Date and ending December 31, 2002, but not more than
EUR 40,000 in the aggregate.
8. COVENANTS AND FURTHER OBLIGATIONS
-- ------------------------------------
8.01. Access to the Business. Upon the execution hereof the Seller shall
procure that the Purchasers are given reasonable access to all the trading
premises of the Seller (but subject to prior consultation with the Seller), and
that the Purchasers are consulted on all matters of policy insofar as they might
materially affect the Purchased Assets after Execution Date.
9. REPRESENTATIONS AND WARRANTIES
-- --------------------------------
9.01. The Purchasers hereby, jointly and severally, warrant and represent
to the Seller that they will deposit with the Purchasers' Attorneys, which will
be solely the trustee of the Purchasers, an amount equal to 50% of the Maximum
Consideration within 5 business days from signing of this Agreement.
9.02. The Seller warrants and guarantees by way of an independent guarantee
(selbstandiges Garantieversprechen within the meaning of Sec. 311 para. 1German
Civil Code) the following as of the Execution Date as well as of the Closing
Date and the Transfer Date:
(a) To the Purchaser 2: The Seller is the owner of the Purchased Tangible
Assets and Inventories, they are free of any rights of third parties except for
those of the Purchased Assets which form integral parts of the Leases or the
Facilities, for the rights of the respective lessors to claim for either the
removal or for the acquisition of the Purchased Assets for consideration under
the terms of the Leases and for the lessor's landlord's lien which has not been
asserted.
(b) The Seller has the unrestricted right to dispose of the Purchased Assets
in the manner prescribed by the Agreement (except that the transfer of contracts
may require prior third party consent).
(c) To the Purchaser 2: Schedule 11 [List of Sold Tangible Assets and
Inventories] contains a complete and correct list of Tangible Assets and
Inventories pertaining to the Purchased Business.
(d) To the Purchaser 2:The Purchased Tangible Assets and Inventories have
been properly maintained in accordance with normal industry practice, are in
operating condition and are suitable for the purpose for which they are
presently used by the Seller.
The Seller has no knowledge of any significant problems with the Purchased
Tangible Assets and Inventories.
(e) To the Purchaser 2:Schedule 10 [List of Sold Intangible Assets] contains
a complete and correct list of intangible assets pertaining to the Purchased
Assets that are transferable and transferred under this Agreement but expressly
does not include the Veritas license; also, the Purchaser 2 is aware, that the
transfer of the Oracle license requires the consent of Oracle. The Seller is the
owner or licensee, as the case may be, of the software and domains which are
necessary for conducting the Purchased Business as presently conducted. Seller
has the right to transfer the Purchased Intangible Assets unless indicated
otherwise in Schedule 10 [List of Sold Intangible Assets] but subject to the
approval of Oracle for the transfer of the Oracle License and to the extent
Seller owns such intellectual property and know-how; to the extent Seller is
licensee of such intellectual property and know-how, it has the right to assign
its rights as licensee other than the Veritas license. With respect to the
Purchased Intangible Assets there are no outstanding claims by third parties
against the Seller regarding infringement of Purchased Intangible Assets and no
such claims are pending, or to the Seller's best knowledge, threatened; (ii)
there is no obligation to pay a license fee to a third party for the use of the
Purchased Intangible Assets other than in accordance with the terms of the
license agreements, which the Purchaser 2 confirms to have knowledge of. Section
2.02 applies.
(f) Seller has notified the transfer of the Business to its employees prior
to Closing.
(g) There are no legal actions or manifest threats thereof against the
Seller which could affect the transfer of full and unencumbered title to the
Purchased Assets.
(h) To the Purchaser 1: Schedule 3 [Customer Base] contains a complete and
correct list of all Customers the Customer Contracts of which are sold.
(i) To the Purchaser 1: Schedule 4 [Material Customer Contracts] contains a
complete and correct list of all Material Customer Contracts.
(j) To the Respective Purchaser: The Customer Contracts and the Equipment
Lease Contracts are valid and have not been terminated. The Seller has fulfilled
all its liabilities arising out of the Customer Contracts up to the Execution
Date, the Closing Date as well as the Transfer Date in accordance with the terms
and conditions of the Customer Contracts and the Customer Contracts and the
Revenue Income have not been assigned to, or seized by, third parties.
(k) Except as listed in Schedule 19 [Legal Proceedings] Seller is not
involved in any kind of proceedings pending before courts or administrative
agencies or arbitration tribunals relating to the Purchased Assets and to the
best of Seller's knowledge no such proceedings have been threatened.
(l) The costs mentioned in Sections 5.03 and 6.02 of the Agreement will not
be significantly higher than the last six months preceding the Transfer Date.
9.03. For the avoidance of doubt, the above independent guarantees shall not
be construed as being guarantees within the meaning of Sections 443 para. 1 and
444 German Civil Code.
9.04. The Parties agree that it shall not be considered a breach of the
representations and warranties above, if the amount of losses, damages or
indemnification, in each separate case, does not exceed E 5.000,00 (Euro five
thousand).
9.05. Any further or other statutory, implied or express representations and
warranties are excluded. This does not affect any liability of the Seller to the
Purchaser 2 under the sublease agreements to be concluded pursuant to Section
6.01of the Agreement.
9.06. Section 377 German Commercial Code shall not be applicable.
10. BREACH OF WARRANTIES, INDEMNIFICATION
--- ----------------------------------------
10.01. Prior Execution Claims. The Seller shall indemnify and keep
indemnified and hold harmless the Respective Purchaser against any liability
(whether actual, contingent or otherwise), debts, costs, losses, expenses,
claims, judgments, monies, awards and/or damages regarding the Purchased Assets
arising out of events or circumstances, or related to periods, prior to Transfer
Date. Without limiting the generality of the foregoing, this shall particularly
apply to (i) warranty liabilities vis-a-vis Customers, (ii) any and all Tax
Liabilities for time periods preceding the Transfer Date, in particular tax
liabilities which Purchaser is deemed to have assumed pursuant to Section 75 AO
and (iii) liabilities which a Purchaser is deemed to have assumed pursuant to
Section 25 German Commercial Code.
10.02. Warranty Claims. In the event of a warranty Claim a Purchaser, upon
having granted the Seller a 30 day period to cure the breach and such breach not
being cured within this period, will be entitled to the following remedies:
(a) If a representation, warranty and/or guarantee in this Agreement is
untrue, incomplete or not complied with, the Seller shall compensate the
respective Purchaser for any damages, losses, expenses, liabilities and other
disadvantages of any kind and nature which would not exist if such
representation, warranty and/or guarantee were true, complete and complied with.
(b) The rights set out above and hereunder do not affect the rights of a
Purchaser to assert the statutory claims and remedies, such as specific
performance, rescission (Rucktritt) of this Agreement, reduction (Minderung) of
the purchase price, claims for damages etc. However, a Purchaser shall not be
entitled to rescind this Agreement if the matter which is subject to such claim
is (i) not a guarantee under Section 9.02 above, or (ii) not material for
conducting of the Purchasers' business in regard to the Purchased Assets and
only to the extent that the rescission is reasonably practicable.
(c) For greater certainty, the Parties assume that the Customer Contracts
and the Equipment Lease Contracts will be transferred to the Respective
Purchaser. However, in the event that any of these Contracts are not effectively
legally transferred such event does not trigger any rights of, and remedies for,
the Purchaser, in particular the Purchasers shall have no right as to specific
performance, reduction of the Purchase Price (beyond the calculation of the
Variable Consideration), damages or rescission, unless the failure of transfer
is due to a violation of the Seller's obligations provided for in this
Agreement. The same applies with regard to the Supplier Contracts, since the
Parties have made the transfer, amendment or termination thereof, satisfactory
to the Parties, a Condition Precedent under this Agreement.
10.03. Scope of Indemnification. The indemnification covers all costs,
damages or expenses (including court and attorney fees in defending against any
claim) thus incurred by a Purchaser ("Indemnification"). However, the
Indemnification shall not exceed and thus be capped at respective share of the
Maximum Consideration.
10.04. Co-operation. In relation to any claim or alleged claim under this
Agreement and without prejudice to the validity of the claim or alleged claim in
question, the Purchasers shall allow the Seller and its accountants, solicitors
and other professional advisers to investigate the matter or circumstance
alleged to give rise to such claim and whether and to what extent any amount is
payable in respect of such claim pursuant to the terms of this Agreement and for
such purpose the Purchasers shall give (subject to its being paid all costs and
expenses incurred in complying with this clause) all such reasonable assistance
as the Seller or their accountants, solicitors or other professional advisers
may on reasonable notice request, including access to and copies of any relevant
documents or information in the possession of the Purchasers except to the
extent that such documents or information are regarded (in the Purchasers' sole
judgment) as confidential to the activities of the Purchasers or any of its
subsidiaries.
11. STATUTE OF LIMITATION
--- -----------------------
11.01. The claims of each Purchaser under or in connection with this
Agreement shall be time-barred two years after the Execution Date.
11.02. Claims directly or indirectly relating to taxes, contributions and
other duties relating to the Purchased Assets for time periods up to the
Transfer Date shall be time-barred two years after they have finally and
completely been assessed.
11.03. The limitation period may in any case be validly interrupted if the
claim has been asserted in writing prior to the expiration of the limitation
period.
12. ANNOUNCEMENTS
--- -------------
12.01. The Seller and the Purchasers shall consult together as to the terms
of, timetable for, and manner of publication of, any announcement to
shareholders, employee's, customers or suppliers or any authorities or to the
media or otherwise which either may desire or be obliged to make regarding the
subject-matter of this Agreement. Subject as aforesaid and, neither the Seller
nor the Purchasers shall make or authorize any announcement concerning the
subject-matter of this Agreement.
12.02. However, each Party is entitled to make such announcements as
required under any law, ordinance, stock exchange rule or the like.
13. CONFIDENTIALITY.
--- ----------------
13.01. The Purchasers shall not after the date hereof nor at any time
thereafter utilize, for their own or third parties purposes, or divulge, publish
or reveal to any person any information whatsoever concerning the business
organization, finances, dealings, transactions or affairs of the Seller and the
Purchasers shall use their best endeavors to prevent the disclosure or
publication of any such matters by others, and shall keep with complete secrecy
all confidential information entrusted to either of them, and shall not use or
attempt to use any such information in any manner which may injure or cause loss
either directly or indirectly to the Seller or its businesses or may be likely
to do so. The premises apply, mutatis mutandis, to the Seller's confidentiality
obligation.
13.02. For the purposes of clause 13.01 above, "confidential information"
shall include information of a confidential nature and not publicly known which
is owned by the Seller or used in or otherwise relates to the Purchased Assets
and the Purchased Business including, without limitation, information relating
to:
(a) the business methods, corporate plans, management systems, finances, new
business opportunities or development projects of the Purchased Assets; or
(b) the marketing or sales of any past or present or future products, goods
or services including, without limitation, customer names and lists and other
details of customer names and lists and other details of customers, sales
targets, sales statistics, market share statistics, prices, market research
reports and advertising and other promotional materials; or
(c) future projects, business development or planning, commercial
relationships and negotiations; or
(d) any trade secrets or other information relating to the provision of any
product or service.
14. MISCELLANEOUS PROVISIONS
--- -------------------------
14.01. Costs and Expenses. Each Party will pay its own costs of and
incidental to this Agreement and the sale purchase, transfers and assignments
hereby agreed to be made.
14.02. Severability. All the clauses in this Agreement are distinct and
severable, and if any clause is held unenforceable, illegal or void in whole or
in part by any court, regulatory authority or other competent authority, it
shall to that extent be deemed not to form part of this Agreement, and the
enforceability, legality and validity of the remainder of this Agreement will
not be affected. The same applies if this Agreement contains any omissions. In
lieu of the invalid or unenforceable provision or in order to complete any
omission, a fair provision shall apply which to the extent legally permissible
comes as close as possible to what the Parties had intended or would have
intended according to the spirit and purpose of this Agreement if they had
considered the matter at the time this Agreement was executed. The same applies
if the provision is invalid because of the stipulated scope or time period.
14.03. Assignment. The benefit of any provision in this Agreement may be
assigned by either Party without the consent of the other Party.
14.04. Prior Arrangements. This Agreement (together with any documents to be
executed pursuant to it) supersedes all prior representations, arrangements,
understandings and agreements between the Parties hereto relating to the
subject-matter hereof, and sets forth the entire, complete and exclusive
agreement and understanding between the Parties relating to the subject-matter
hereof.
14.05. Remedies Cumulative. The provisions of this Agreement, and the rights
and remedies of the Parties under this Agreement, are cumulative and are without
prejudice and if not otherwise provided for herein in addition to any rights or
remedies a Party may have at law or in equity. No exercise by a Party of any one
right or remedy under this Agreement, or at law or in equity, shall (save to the
extent, if any, provided expressly in this Agreement) operate so as to hinder or
prevent the exercise by it of any other such right or remedy.
14.06. Waiver. Any liability to a Purchaser under this Agreement may be in
whole or in part released, varied, compounded or compromised by such Purchaser
in its absolute discretion as regards the Seller or other party under such
liability without in any way prejudicing or affecting its rights against any
other party under the same or a like liability whether joint or several or
otherwise. A waiver by a Purchaser of any breach by any party hereto of any of
the terms, provisions or conditions of this Agreement or the acquiescence of a
Purchaser in any act (whether commission or omission) which but for such
acquiescence would be a breach as aforesaid will not constitute a general waiver
of such term, provision or condition or of any subsequent act contrary thereto.
14.07. Notices. Any notice or other communication to be given or served
under this Agreement shall be in writing, addressed to the relevant Party and
expressed to be a notice or communication under this Agreement and, without
prejudice to the validity of another method of service may be delivered or sent
by pre-paid registered airmail or telecopier addressed as follows:
If to Seller: Cybernet Internet If to Purchaser 1 and/or
Dienstleistungen AG Purchaser 2
Address: Xxxxxx-Xxxxxx-Ring 19-23, Address: Xxxxxxxxxxxxxxx 0,
00000 Xxxxxxx 10623 Berlin
Attention: Xxxxxxx Xxxxx Attention: Xxxx Xxxx
With copy to Seller's Attorneys With copy to Purchaser's
Attorneys
Telecopier no: x00-00-0000000
Telecopier no.:+49- x00-00-000000-00
or to such other address or telecopier number as the addressee may have
previously substituted by notice.
14.08. Governing Law. This Agreement and all relationships created hereby
will in all respects be governed by and construed in accordance with German law.
14.09. Jurisdiction. The exclusive place of jurisdiction is Frankfurt am
Main.
14.10. Language. The English language version of this Agreement shall take
precedence in the event of any dispute. However, the Parties acknowledge, that
in case of a dispute at court the German language, also for documents that shall
be presented, is mandatory.
14.11. Any amendment or supplement to this Agreement must be in writing.
This also applies to this section 14.11.
IN WITNESS whereof this Agreement has been entered into the date and year first
herein written.
* SELLER
By: /s/ Xxxxxxx X. Xxxxx
----------------------------
Name: Xxxxxxx Xxxxx
----------------------------
Title: Director
----------------------------
* PURCHASER 1
By: /s/ Xxxx Xxxx
----------------------------
Name: Xxxx Xxxx
----------------------------
Title: Managing Director
----------------------------
* PURCHASER 2
By: /s/ Xxxx Xxxx
----------------------------
Name: Xxxx Xxxx
----------------------------
Title: Managing Director
----------------------------
SCHEDULES 1 - 19
-------------------
